Sunday, January 9, 2011

Reviewed: Chemerinskly, The Conservative Assault on the Constitution

Erwin Chemerinsky, constitutional scholar and Dean of the new law school at U.C. Irvine has a new book on Supreme Court history: The Conservative Assault on the Constitution. Tim Rutten at the Los Angeles Times finds it "urgent" and "admirably lucid." Chemerinsky dates the rise of legal conservatism from Richard Nixon's presidency. It is in part a first-person account, as he builds into the story his own experiences arguing before the Supreme Court. Rutten writes:

Chemerinsky believes that our political conversation's false choice between judicial activism and neutral or "strict construction" judging has obscured the Supreme Court's authoritarian drift. The Constitution, he argues, requires interpretation — and has since the earliest days of the Republic, when the Framers still were engaged in national government — and interpretation is inherently an active process.

"The difference between liberals and conservatives," he writes, "is not in their willingness to overrule precedent or in their degree of deference to popularly elected officials or to make momentous decisions affecting society. The divergence is entirely about when they want the court to do this and for what purpose. The other difference is in their rhetoric; conservatives continue to rail against judicial activism and profess judicial restraint even though they are every bit as willing to be activist as liberals."

Not so fast, writes Eric Posner, reviewing Chemerinsky in The Book (The New Republic). "Erwin Chemerinsky usefully tells the story" of the rise of judicial conservatism since Richard Nixon's presidency, he writes, and he finds it "basically correct," though he has quibbles. But Posner, a leading legal conservative, emphasizes:

The jurisprudential reaction to the Warren Court that Chemerinsky describes did not come out of thin air. Conservatives believe that Chemerinsky’s beloved Warren Court staged a liberal assault on the Constitution, which the Rehnquist and Roberts Courts have only begun to repair. The Warren Court sent the Constitution into exile, and only today is the Court in the process of escorting it home. These conservatives point out that the Constitution, as it was originally understood, never recognized a right to abortion, a right to use contraception, a right to attend a desegregated school. The various protections in the Bill of Rights did not apply to the states; the Warren Court invented the idea that states had to comply with the Bill of Rights, and so all the criminal protections it recognized are tainted as well. Some conservatives go further, arguing that New Deal-era opinions expanding the power of the national government to regulate the economy violate the original understanding of the Constitution. Far from assaulting the Constitution, conservative justices are rehabilitating a wounded document that has been distorted by liberal justices who have implemented their ideological preferences.

As Justice Scalia right notes, if there are changes to be made in the wording of the Constitution to recognize issues not thought of or present when that document was drafted, the Constitution must be legislatively amended, not "interpreted" by the Judiciary.

Indeed, we can point to the "bill of rights" for such course of action

"Interpreting" the Constitution by the Judiciary, unconstitutionally violates the separation of powers.